History and Policy of English Language Programs

Federal Legislation and Court Decisions

1964 Civil Rights Act Title VI was passed as a result of the Civil Rights Movement and the historic Brown v. Board of Education (1954) Supreme Court Decision. The Civil Rights Act of 1964 prohibited discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. In the words of President John F. Kennedy (1963): Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination. 

1968  Congress passed the Bilingual Education Act as Title VII of the Elementary and Secondary Education Act of 1965 (ESEA) offering capacity building in the form of grants to local districts and states to develop and offer educational programs in the native language. Although the bilingual programs were primarily transitional in intent—that is, the native language would be provided as a temporary support for several years during which children learned sufficient English to survive—this transitional period also supported a point of view with respect to maintenance bilingualism. Advocacy for the value of bilingualism created a counterforce from new coalitions such as U.S. English (founded in 1983 by S. I. Hayakawa) and other defenders of the melting pot ideal who wanted to support the common language of English. The Official English movement should not be confused with “English Only”. The former is primarily concerned with guaranteeing that non-English speaking immigrants become proficient in English as quickly and effectively as possible. The “English Only” movement is an off-shoot of various anti-immigration movements in the United States and would prohibit the use of languages other than English in public places and signage.  Out of the disagreements between those who supported bilingual education and those whose emphasis is solely on the attainment of English proficiency came two important questions:

(a) Is bilingual education effective?

(b) How long does it take for students to learn enough English to perform successfully in school and careers?

The answers to these two questions are based on research discussed in Module 2 and in chapter 4 below.

1974 Lau v. Nichols,  a class-action suit brought on behalf of a student in the San Francisco Unified School District, Kinney Lau. Lau claimed that the district did not provide access to English language acquisition or to a meaningful curriculum for children who were limited in their English proficiency and that this violated Title VI of the Civil Rights Act of 1964, in particular the prohibition of discrimination based on national origin. Lau v. Nichols (1974) was decided unanimously in favor of plaintiffs by the U.S. Supreme Court, ruling that “there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.”

One consequence of Lau was that students with limited proficiency in English became a protected class, that for these students the same treatment did not constitute equal treatment, and that schools bore an affirmative obligation to address both the language and curricular needs of the students. More than even the prior legislation prohibiting discrimination, Lau v. Nichols pushed further into the educational sphere, requiring answers to questions about what kind of education constitutes “equality of treatment”. 

1974 The Equal Educational Opportunities Act (EEOA) codified the Lau decision, prohibiting discrimination against faculty, staff, and students, including racial segregation of students, and requiring school districts to take action to overcome barriers to students' equal participation.

1981 Castaneda v. Pickard. The Fifth Circuit Court of Appeals addressed the issue of “appropriate action” as stated in the Equal Educational Opportunities Act of 1974. This decision ruled that determination of “appropriate action” should be guided by three standards:

1) the educational approach should be based on sound educational theory;

2) the educational approach should be implemented adequately; and

3) the approach should be  evaluated for its effectiveness in remedying the inequity.

Note: An implicit fourth standard was that if an approach is not effective, the implementation or the theory must be revised until the inequity is remedied. 1994 reauthorization of ESEA as Improving America’s Schools (IASA) was a product of the Standards-based reform movement which emerged following publication of A Nation at Risk (National Commission on Excellence in Education, 1983). Influenced by federal legislation such as Goals 2000, the implications of this movement moved education of ELLs from a “categorical” approach (identifying classes of students and paying for education services that targeted their needs) to a focus on outcomes.  With standards-based reform, the goal was high standards for all – including English Language Learners.

2004 NCLB The No Child Left Behind Act (NCLB), as the 2004 reauthorization of ESEA (1965) is known, further focused reform on the assessment and accountability components of the emerging standards based educational reform movement. If a school did not meet progress targets for achievement, various actions were triggered.  In a bow to the U.S. English (Official English) movement, Congress renamed the Bilingual Education Act (Title VII of the Elementary and Secondary Education Act) and it is now Title III of ESEA and called the English Language Acquisition, Language Enhancement, and Academic Achievement Act. Furthermore, NCLB required each state to adopt English language proficiency standards and an aligned assessment.